Nkandla 2.0 (million)

6 October 2012 10:35

When did the looting of public funds for private enrichment become acceptable?

If it is true the department of public works approved a whopping R203 million budget for the hush-hush revamp of President Jacob Zuma’s private Nkandla homestead, one must ask if it is legal for the president to use public funds to upgrade his private residence?

Will the Hawks be investigating what appears to be the criminal misuse of public funds and, if not, why not?

According to City Press’ documentation, the public works department approved the budget in March last year, despite earlier claims by the department that Zuma was funding the project from his own pocket.

According to official departmental documentation, the president will “only” pay R10.6 million of this cost himself.

How our president will be able to afford to pay that in the first place, given that he has only earned about R6 million since becoming president, is another question the Hawks might want to look into.

Public works’ acting director-general Mandisa Fatyela-Lindie declined to comment on the amount that was spent because Nkandla is a “national key point”.

She added: “As such, information related to the national key point is protected in terms of the National Key Point Act.”

The starting point for any legal evaluation of this alleged splurge of public funds to improve the private residence of our president must be the Executive Members Ethics Act and the code adopted to give effect to it, which binds all Cabinet members, including the president.

The act and the code prohibit the president from acting in a way that is inconsistent with his office, using his position to enrich himself, or acting in a way that may compromise the credibility or integrity of his office or of the government.

The code further prohibits the president from making improper use of any allowance or payment properly made to
him, or to disregard the administrative rules that apply to him.

It is clear the spending of more than R200 million on an upgrade to the private home of the president would be in clear breach of these obligations and would therefore be unlawful.

The source of administrative rules is the (in)famous ministerial handbook, which (believe it or not) does prohibit the state from paying for the renovation of the private residences of Cabinet members – even when used as official residences.

Chapter 4 states that members of the Cabinet “are responsible for all costs related to the procurement, upkeep and maintenance of private residences used for official purposes”.

The handbook – bizarrely claimed to be a classified document but widely available on the internet – does allow for part of the cost of security arrangements at the private houses of “public office bearers” to be carried by the state.

However, in Annexure E – adopted by Cabinet in June 2003 – the following rules are set out for the funding of security measures at the private residence of the president or other Cabinet members:

» The minister of public works may approve only a state contribution of a non-recoverable maximum amount of R100?000, or the total cost of security measures not exceeding R100?000.

Should the cost of the security measures be more, the difference shall be borne by the public office bearer.

» Any amount above R100 000 spent on any upgrades at Nkandla (even for security-related reasons) are therefore not spent in accordance with the provisions of the ministerial handbook and must be deemed unlawful.

» It is true the National Key Points Act (a piece of legislation adopted at the height of apartheid in 1980) provides for the use of public funds to protect so-called national key points.

But such expenditure can only be paid from the special account for the safeguarding of national key points and only on instruction from the minister of defence.

This was clearly not done in this case, which means the act is not applicable here.

No wonder government is trying to hide details about the unlawful expenditure by invoking a piece of draconian apartheid legislation on national key points.

But this, unfortunately, is also nonsense. Even the act does not entitle government to avoid accountability for spending more than R200 million on upgrading the president’s private residence.

It is true that section 10(1)(c) of the act prohibits anyone from providing any information relating to security measures in respect of a key point unless he or she is legally obliged to do so.

But in this case, the unlawful spending of more than R200 million on upgrades on the private home of the president does not relate to the details of the actual security measures at his home.

While government can decline to provide detailed information on the security measures at Nkandla to protect the president, they cannot invoke the National Key Points Act to try and hide unlawful expenditure on the upgrading of his private house through the looting of public funds.

In a constitutional democracy, legislation can never be used to hide unlawful conduct, maladministration or corruption; and neither can it be used to try and escape from accountability for the spending of public funds.

The attempt by the acting director-general to do so is shameful and displays a contempt for all 50 million South African citizens who are footing this bill through their payment of various taxes.

» De Vos is a law professor at the University of Cape Town and is an expert on constitutional law